Appellate Division: Second Judicial Department

M143214

E/sl

REINALDO E. RIVERA, J.P.

RANDALL T. ENG

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

2012-05054 In the Matter of Matthew J. Keating, respondent- appellant, v Wanda Keating, appellant-respondent. (Docket No. V-12519/09/09A)

DECISION & ORDER ON MOTION

Appeal by Wanda Keating and cross appeal by Matthew J. Keating from an order of the Family Court, Westchester County, dated April 20, 2012. By order to show cause dated July 27, 2012, the parties or their attorneys were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal and cross appeal in the above-entitled proceeding for failure to comply with a scheduling order dated June 14, 2012, issued pursuant to § 670.4(a)(2) of the rules of this Court (22 NYCRR 670.4[a][2]).

Now, upon the order to show cause and the papers filed in response thereto, it is

ORDERED that the branch of the motion which is to dismiss the appeal by Wanda Keating is granted, and that appeal is dismissed, without costs or disbursements, for failure to comply with the scheduling order dated June 14, 2012, issued pursuant to § 670.4(a)(2) of the rules of this Court (22 NYCRR 670.4[a][2]); and it is further,

ORDERED that the branch of the motion which is to dismiss the cross appeal is denied; and it is further,

ORDERED that within 30 days after the date of this scheduling order, Matthew J. Keating shall file in the office of the Clerk of this Court one of the following:

(1) an affidavit or affirmation stating that there are no minutes of the Family Court proceedings to be transcribed for his appeal; or

(2) if there are such minutes, an affidavit or affirmation that the transcript has been received, and indicating the date that it was received; or

(3) if the transcript has not been received, an affidavit or affirmation stating that it has been ordered and paid for, the date thereof and the date by which the transcript is expected; or

(4) if Matthew J. Keating is indigent and cannot afford to obtain the minutes or perfect the appeal, a motion in this Court for leave to prosecute his appeal as a poor person and for the assignment of counsel, pursuant to the requirements of CPLR 1101. Such a motion must be supported by his affidavit, stating either that he qualified for assigned counsel upon application to the Family Court and that his financial status has not changed since that time, or that he had retained counsel or appeared pro se in the Family Court, and listing his assets and income; or

(5) an affidavit or an affirmation withdrawing his appeal; and it is further,

ORDERED that if none of the actions described in (1), (2), (3), (4), or (5) above has been taken within 30 days of the date of this scheduling order, the Clerk of the Court shall issue an order to all parties to show cause why the appeal by Matthew J. Keating should or should not be dismissed.

RIVERA, J.P., ENG, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

The Case Manager assigned to this case is Ms. Vazquez. Please contact her at 718-722-6488 with any questions.